The dumbo's guide to apex court

The diminishing of an institution's majesty is directly proportionate to confusion about its own role

You and I are befuddled by erudite articles criticising the Supreme Court for pussyfooting around petitions challenging the government's decision on Kashmir. Our befuddlement arises because our knowledge of the judiciary is derived from school textbooks read years ago. These emphasised the Supreme Court's pivotal role in protecting citizens from the state's absolutism. Its majesty shone because we believed that it would fearlessly restrain the executive from going amok.

Below are extracts from some articles, followed by the inference that dumbos such as you and I might draw from them. This might help dispel our confusion about the judiciary.

Congress leader Salman Khurshid wrote: "For decades since the Emergency…our appellate judges have assiduously built a remarkable edifice of liberty jurisprudence. Yet suddenly an amorphous notion of national security has become the catchphrase that is virtually pushing freedom of the individual to take a backseat… The temple of freedom appears perplexed from Koregaon to Kashmir."

The dumbo's inference: Khurshid is saying India is slipping back into the Emergency era, when individual freedom depended on the executive's determination of the measures required for national security. When the "temple of freedom appears" perplexed, can dumbos take their liberty for granted?

No, they can't. As academician Pratap Bhanu Mehta wrote, "…The cowardly, almost impeachable, abdication of the judiciary in the face of threats to civil liberties has now made an appeal to the law akin to an appeal to the majestic benevolence of an odd judge at best, and a laughing joke at worst."

The dumbo's inference: Against whom is the judiciary behaving cowardly? The answer: the government, which alone can shrink liberty.

NALSAR law university vice-chancellor Faizan Mustafa, in an interview, said: "Our experience has been that when you have governments with massive majorities, courts stay away from political questions… I have a feeling that when it comes to their own powers, they jealously guard them. But when it comes to the Constitution, citizen's liberties, same kind of anxiety is not demonstrated by the courts."

The dumbo's inference: The judiciary is behaving cowardly, as Mehta said, because the government enjoys a massive majority. Worse, liberty isn't of as much concern to the judiciary as its own rights are. Is abdication the judiciary's strategy to protect its own rights?

Yes, suggests senior Supreme Court advocate Sanjay Hegde. He wrote: "The judiciary and especially the Indian Supreme Court's record in recent times is one of conciliation and propitiation of the government. It has not intervened on the citizens' side in any cause where the government has invested political capital."

The dumbo's inference: Our liberty will be automatically protected as long as we don't engage with politics. None stops us from visiting a mall, after all. But mobile phones are radioactive, as we saw in Kashmir. Silence best protects liberty, not the judiciary!

Legal scholar Gautam Bhatia wrote: "Unlike the Emergency, the courts have not upheld the government's actions [on Kashmir] - so far. What they have done is dodged, ducked, evaded, and adjourned… This is nothing other than executive supremacy by stealth."

The dumbo's inference: A judicial verdict upholding curbs on liberty would mean courting infamy in perpetuity. The doctrine of evasion has people perennially wait for justice and keep their hope flickering. Hope confuses humans, certainty doesn't.

Explaining the judiciary's deafening silence on Kashmir, senior Supreme Court advocate Dushyant Dave wrote: "The reason is not far to fathom. The distance between the judiciary and political and executive leaders is blurring."

The dumbo's inference: The system of checks and balances works because each of the state's three wings doesn't encroach upon the turf of others, or so our textbooks explained. Dave is saying that the executive has usurped the judiciary's role. How?

Journalist Aakar Patel answered: "Indian courts show enthusiasm for upholding their own dignity through the contempt law, the rest of us can be manhandled in the way [P] Chidambaram is and that is fine with them."

The dumbo's inference: Since the judiciary isn't moved by the plight of even Chidambaram, who is not "us" in class terms, you and I, in reality, have no protection from the executive.

Patel proffered advice: "Those accused of criminality in India mumble the mantra: 'I have full faith in the judiciary.' The formulation is regurgitated out of fear and not respect. It is the responsibility and duty of the courts to change that." Likewise, former Supreme Court judge Madan Lokur, in another context, said, "Silence [of the judiciary] on crunch issues is not golden."

The dumbo's conclusion: Wish I hadn't read those textbooks, which should be rewritten to bring legal idealism approximate to reality. The diminishing of an institution's majesty is directly proportionate to confusion about its own role. As we await judgment on Ayodhya, lead us from darkness to light, my lord.

The writer is a senior journalist

The views expressed in this column are the individual's and don't represent those of the paper

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